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LawGirl, Lawyer

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I am a Tenant in California, and I won my Unlawful Detainer

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I am a Tenant in California, and I won my Unlawful Detainer case in Superior Court that my Landlord and her lawyer brought against me. I won the case because after her attorney moved to replace the outdated 3 Day Notice that was attached to the summons with a more current 3 Day Notice that pertained to the actual UD action, and the Judge approved that, I pointed out to the Judge that the new 3 Day Notice was 45 days beyond the 1 year limitation the law says is valid for a 3 Day Notice. As her attorney frantically tried to pull up one precedence after another, even with help from another attorney in the court room and the Judge spending a good 20 minutes or so looking up anything in his law books that might help their case, he eventually was forced to rule in my favor.

I was not worried if the entire matter was heard, as I think I would have still prevailed. But here is my complicated question. The case is based on a rent of August of 2009 check that my bank shows was processed and funds were deleted from my account. Upon discovering this fact in March of 2010, my Landlord informed me of the missing funds in her account. I looked through my records and found the money was taken out of my account. We haggled for about 5 months before she decided to file the UD against me. Before doing so, her agent had asked for a copy of the cancelled check, which I provided on 3 seperate occassions, complete with all of the transactiuons numbers. The agent refused the check because she is 85 and wanted the cancelled check to look like it used to back in the 80s and 90s, but now banks dont provide color copies as they did in the past, but rather now provide a black and white with all the the numbers that were printed on the back now printed in columns underneath the copy. I also provided numerous different print outs from my bank showing that the funds were deducted. Now comes the important part followed by my questions:

For the entire month of August 2010 and the 10 days in September 2010 before i was served with the Summons of the UD, the Landlord would only accept the funds OR told me I would have to get the Landlords bank to provide the proof. As I am not allowed access to the Landlord's bank account I told the Agent that i had talked to the bank, they agreed it was most likely an error on their part but that the Landlord would have to approve the "Bank Investigation" and would need to talk to her bank. The agent told me too bad, the Landlord was not going to do that, either I figure out a way to somehow get into the Landlord's account and bring the proof, or Pay the money. IS THIS NOT EXTORTION? I asked the agent that question, and her response was "Call it what you will, the Landlord will not accept anything but the money."

I told the agent to tell my Landlord I was going to her bank the next day, and would have the bank call the Landlord and explain. I talked to the Bank Manager in person and she tried calling the Landlord to clear it up, to no answer. She then called the agent and explained to the agent that the information I had was correct, and after trying to trace it themselves at that moment, they found a couple of different possibilities, but they would have to commence an investigation, which would take a few days. The agent declined her help, and said to Branch Manager that what she had been asking for was a copy of a statement, which I had refused to provide. That is a lie, as i have proof of since an attorney friend of mine wrote a letter on my behalf that was attached with all of my proof in March of 2010, and offered Bank Statements, but felt the proof we offered at that time was more conclusive. The agent nor Landlord never mentioned ever wanted these statements until 4 days before I was served with the UD. The agent had continually said the only proof she wanted was a cancelled check. Once the Landlord's Bank manager told the agent that the cancelled check I had been providing was the actually document that was needed to trace the error, the agent then told the Branch Manager that she now didnt want the cancelled check, but statements. IS THIS NOT EXTORTION? As I was hit with the UD the next day. So here are the follow up questions...What are my rights as a prevailing tenant? They immediately hit me with a 3 Day Notice to pay the 3 months rent that we have not paid because of the UD.Since I won, is there no law or precedence stating I have some time before I have to pay her all this rent, since it wasnt my decision to drag all of this into court? And I am not sure I even want to continue to live here after all this. Plus I am guessing she is going to then hit me with another 3 Day, as Judge said they could file without a date of when the past due and be within the law. i don't want to pay all this rent and then hit with another 3Day that leads to a new UD action. i would rather just let it all ride together. can i and stay with in the law? sorry for the longwind...

Thank you for your question. Although I am an attorney, I cannot represent you. However, I will give you the most thorough information available. So, please allow me to ask a couple of questions for clarification because there is a lot here and I want to make sure we are on the same page. The UD action was because the landlord is telling you that rent was not paid in August but you can prove that money was taken out of your account?

Customer: Yes, that is correct. And after I provided them with 3 for

Customer: Forms of proof, they asked me for a bank copy of the cancelled check, which I provided on 3 separate occassions. Also, I discovered they broke the rules in serving the 3 Day Notice on Wednesday. Instead of following procedure of trying to hand deliver, they skipped to step 2 and taped the 3 Day notice to our door and put in the mail immediately on the day of my win. We were home all day, and she did not even try to deliver it personally. It just annoys me, that they are always trying skirt the law, yet insist we follow it to the letter.

LawGirl :

To the extent that they are requiring proof from her bank account which you are not entitled to access, you may consider asking the court for a subpoena to get the definitive proof that you seek. Otherwise, to the extent that you are sued again, you can provide proof of the canceled check to the court.

LawGirl :

Your landlord has the ability to bring a new action to the extent that they believe they have not been paid in full under the lease agreement. If they are paid in full, then they do not have the evidence to sustain a cause of action for unlawful detainer based upon failure to pay.

Yes, I understand that. You did not answer the questions I posed. I will repeat the questions and then you can re-read my long winded explanation again.

1. Would not their actions of demanding either the money or the alternative of suggesting I break the law as my only choices I had to avoid their UD action, is that extortion? In that they refused to have their bank do an investigation to trace the funds in their bank. So they were telling me if I wanted to avoid having the Unlawful Detainer filed against me my only choice was to pay the 2950 for a duplicate time. Extortion, correct? #2--Since I win my case against the Landlord, what are my rights in terms of when I have to pay the rent to bring myself current due to their UD Eviction suit against me. They served me a 3Day Notice 2 hours after the Judge declared me the winner. Don't I have any rights as the winner other then bringing the rent current and then wait to see if they bring the UD against me again? Am I legally allowed to not pay the rent and then have them hit me with both actions at once? In addition, I may decide to move and therefore do not want to pay, as I would attempt to call it even what with a $5000 security deposit they have, plus moving expenses, legal expenses and many hours lost at work. What are my legal rights as the prevailing side? I do not need advice on the case itself if it goes back to trial. Thank you....

1. Is this extortion? California law defines extortion "as the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." Unfortunately, giving you two options given the circumstances does not constitute the definition of extortion. The key here is WRONGFUL. There is no showing that their refusal to do an investigation and then bringing a lawsuit is wrongful. Given the misunderstanding, they can provide you with only two options. Failure to investigate when there is no duty to do so may be irresponsible, but it does not constitute a wrongful conduct under the law.

2. What are your rights in terms of having to pay the rent to bring yourself current due to their UD Eviction against you?

3. What are your rights as the winner of the UD action?You are entitled to continue living in your place pursuant to the terms of the lease and you may be entitled to your court costs and fees that you paid in defending the lawsuit. The court does not compensate you for time you had to take off from work to defend the matter or legal fees (unless you had an attorney and attorney's fees were written into your lease agreement).

4. Are you legally allowed to not pay the rent and then have them hit you with both actions at once?If you are behind on your rent, there will not be two separate unlawful detainer actions, it will all be one action.

5. Can you decide not to move and therefore not pay? Trying to call it even with a $5000 security deposit, plus moving expenses, legal expenses and many hours lost at work?To the extent that you decide to move, assuming that you are not breaking any contractual obligation to your landlord, as long as your security deposit covers any unpaid rent and/or damage to the premises you should be fine. To the extent that your security deposit does not cover this, then you could face another lawsuit.

As this is a very complex question, please let me know if I can provide any clarification or did not completely answer your questions.

Thank you!! Those were very helpful and excellent answers. I really appreciate your help. I was asking about the rent issue as I thought I had read somewhere that if the Tenant prevailed in an UD case in CA, that the Tenant had 5 or 10 days to bring the rent current and continue living in the premises. So I just want to confirm there is nothing in the law that states what the Tenants rights are after prevailing in a UD case. Once you confirm that I will gratefully close the question and include a bonus for you, as your answers were very helpful. Thanks for your work.....

No problem. I appreciate you clarifying your questions, it really put me on the right track to being helpful.

There is no specific time in which you must bring the rent current. You have the right to continue living in the premises. However, after five days, if rent is outstanding, your landlord can start proceedings again.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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